692

SUPREME COURT REPORTS ANNOTATED

PartosaJo vs. Court of Appeals
*

G.R. No. 82606. December 18, 1992.

PRIMA PARTOSAJO, petitioner, vs. THE HONORABLE

COURT OF APPEALS and HO HANG (WITH ALIASES
JOSE JO AND CONSING), respondents.
Judgments Omission or mistake in dispositive portion of
decision Failure of petitioners counsel to seek rectification
Technicality should not prevail over considerations of substantive
justice.The dispositive portion of the decision in question was
incomplete insofar as it carried no ruling on the complaint for
judicial separation of conjugal property although it was
extensively discussed in the body of the decision. The drafting of
the decision was indeed not exactly careful. The petitioners
counsel, noting this, should have taken immediate steps for the
rectification of the omission so that the ruling expressed in the
text of the decision could have been embodied in the decretal
portion. Such alertness could have avoided this litigation on a
purely technical issue. Nevertheless, the technicality invoked in
this case should not be allowed to prevail over considerations of
substan
______________
*

FIRST DIVISION.

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PartosaJo vs. Court of Appeals

tive justice. After all, the technical defect is not insuperable.We

have said time and again that where there is an ambiguity caused
by an omission or mistake in the dispositive portion of the

decision, this Court may clarify such ambiguity by an amendment

even after the judgment has become final. In doing so, the Court
may resort to the pleadings filed by the parties and the findings of
fact and the conclusions of law expressed in the text or body of the
decision.
Domestic relations Judicial separation of conjugal property
Family Code Abandonment and failure to comply with family
obligations.Abandonment implies a departure by one spouse
with the avowed intent never to return, followed by prolonged
absence without just cause, and without in the meantime
providing in the least for ones family although able to do so.
There must be absolute cessation of marital relations, duties and
rights, with the intention of perpetual separation. This idea is
clearly expressed in the abovequoted provision, which states that
a spouse is deemed to have abandoned the other when he or she
has left the conjugal dwelling without any intention of returning.
The record shows that as early as 1942, the private respondent
had already rejected the petitioner, whom he denied admission to
their conjugal home in Dumaguete City when she returned from
Zamboanguita. The fact that she was not accepted by Jo
demonstrates all too clearly that he had no intention of resuming
their conjugal relationship. Moreover, beginning 1968 until the
final determination by this Court of the action for support in
1988, the private respondent refused to give financial support to
the petitioner. The physical separation of the parties, coupled
with the refusal by the private respondent to give support to the
petitioner, sufficed to constitute abandonment as a ground for the
judicial separation of their conjugal property. In addition, the
petitioner may also invoke the second ground allowed by Article
128, for the fact is that he has failed without just cause to comply
with his obligations to the family as husband or parent. Apart
from refusing to admit his lawful wife to their conjugal home in
Dumaguete City, Jo has freely admitted to cohabiting with other
women and siring many children by them. It was his refusal to
provide for the petitioner and their daughter that prompted her to
file the actions against him for support and later for separation of
the conjugal property, in which actions, significantly, he even
denied being married to her. The private respondent has not
established any just cause for his refusal to comply with his
obligations to his wife as a dutiful husband.
Same Same Same.The amendments introduced in the
Family Code are applicable to the case before us although they
became
694

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SUPREME COURT REPORTS ANNOTATED

PartosaJo vs. Court of Appeals

effective only on August 3, 1988. As we held in Ramirez vs. Court

of Appeals: The greater weight of authority is inclined to the view
that an appellate court, in reviewing a judgment on appeal, will
dispose of a question according to the law prevailing at the time of
such disposition, and not according to the law prevailing at the
time of rendition of the appealed judgment. The court will
therefore reverse a judgment which was correct at the time it was
originally rendered where, by statute, there has been an
intermediate change in the law which renders such judgment
erroneous at the time the case was finally disposed of on appeal.
The order of judicial separation of the properties in question is
based on the finding of both the trial and respondent courts that
the private respondent is indeed their real owner. It is these
properties that should now be divided between him and the
petitioner, on the assumption that they were acquired during
coverture and so belong to the spouses half and half. As the
private respondent is a Chinese citizen, the division must include
such properties properly belonging to the conjugal partnership as
may have been registered in the name of other persons in
violation of the AntiDummy Law.

PETITION to review the decision of the Court of Appeals.

The facts are stated in the opinion of the Court.
Leo B. Diocos for petitioner.
Antonio RamasUypitching for private respondent.
CRUZ, J.:
The herein private respondent, Jose Jo, admits to having
cohabited with three women and fathered fifteen children.
The first of these women, the herein petitioner, claims to be
his legal wife by whom he begot a daughter, Monina Jo.
The other two women and their respective offspring are not
parties to this case.
In 1980, the petitioner filed a complaint against Jo for
judicial separation of conjugal property, docketed as Civil
Case No. 51, in addition to an earlier action for support,
also against him and docketed asCivil Case No. 36, in the
Regional Trial Court of Negros Oriental, Branch 35.
The two cases were consolidated and tried jointly.
OnNovember 29, 1983, Judge German G. Lee, Jr. rendered
an extensive decision, the dispositive portion of which read:
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PartosaJo vs. Court of Appeals

WHEREFORE, in view of all the foregoing arguments and
considerations, this court hereby holds that the plaintiff Prima
Partosa was legally married to Jose Jo alias Ho Hang, alias
Consing, and, therefore, is entitled to support as the lawfully
wedded wife and the defendant is hereby ordered to give a
monthly support of P500.00 to the plaintiff Prima Partosa, to be
paid on or before the 5th day of every month, and to give to the
plaintiff the amount of P40.000.00 for the construction of the
house in Zambeanguita, Negros Oriental where she may live
separately from the defendant being entitled under the law to
separate maintenance being the innocent spouse and to pay the
amount of P19,200.00 to the plaintiff by way of support inarrears
and to pay the plaintiff the amount of P3,000.00 in the concept of
attorneys fees.

As will be noticed, there was a definite disposition of the

complaint for support but none of the complaint for judicial
separation of conjugal property.
Jo elevated the decision to the Court of Appeals, which
affirmed1 the ruling of the trial court in the complaint for
support. The complaint for judicial separation of conjugal
property was dismissed for lack of a cause of action and on
the ground that separation by agreement was not covered
by Article 178 of the Civil Code.
When their motions for reconsideration were denied,
both parties came to this Court for relief. The private
respondentss petition for review on certiorari was
dismissed for tardiness in our resolution dated February
17, 1988, where we also affirmed the legality of the
marriage between Jose and Prima and the obligation of the
former to support her and her daughter.
This petition deals only with the complaint for judicial
separation of conjugal property.
It is here submitted that the Court of Appeals erred in
holding that: a) the judicial separation of conjugal property
sought was not allowed under Articles 175, 178 and 191 of
the Civil Code and b) no such separation was decreed by
the trial court in the dispositive portion of its decision.
_______________
1

Chua, Segundino G., J., ponente, Coquia, Jorge R. and De Pano,

Nathanael, Jr., P. JJ., concurring, promulgated on January 28, 1987.

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SUPREME COURT REPORTS ANNOTATED

PartosaJo vs. Court of Appeals

The private respondent contends that the decision of the

trial court can no longer be reviewed at this time because it
has long since become final and executory. As the decretal
portion clearly made no disposition of Civil Case No. 51,
that case should be considered impliedly dismissed. The
petitioner should have called the attention of the trial court
to the omission so that the proper rectification could be
made on time. Not having done so, she is now concluded by
the said decision, which can no longer be corrected at this
late hour.
We deal first with the second ground.
While admitting that no mention was made of Civil Case
No. 51 in the dispositive portion of the decision of the trial
court, the petitioner argues that a disposition of that case
was nonetheless made in the penultimate paragraph of the
decision reading as follows:
It is, therefore, hereby ordered that all properties in question are
considered properties of Jose Jo, the defendant in this case,
subject to separation of property under Article 178, third
paragraph of the Civil Code, which is subject of separate
proceedings as enunciated herein.

The petitioner says she believed this to be disposition

enough and so did not feel it was necessary for her to
appeal, particularly since the order embodied in that
paragraph was in her favor. It was only when the
respondent court observed that there was no dispositive
portion regarding that case and so ordered its dismissal
that she found it necessary to come to this Court for relief.
The petitioner has a point.
The dispositive portion of the decision in question was
incomplete insofar as it carried no ruling on the complaint
for judicial separation of conjugal property although it was
extensively discussed in the body of the decision. The
drafting of the decision was indeed not exactly careful. The
petitioners counsel, noting this, should have taken
immediate steps for the rectification of the omission so that
the ruling expressed in the text of the decision could have
been embodied in the decretal portion. Such alertness could
have avoided this litigation on a purely technical issue.
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VOL. 216, DECEMBER 18, 1992

697

PartosaJo vs. Court of Appeals

Nevertheless, the technicality invoked in this case should

not be allowed to prevail over considerations of substantive
justice. After all, the technical defect is not insuperable. We
have said time and again that where there is an ambiguity
caused by an omission or mistake in the dispositive portion
of the decision, this Court may clarify such ambiguity by2 an
amendment even after the judgment has become final. In
doing so, the Court may resort to the pleadings filed by the
parties and the findings of fact and the conclusions
of law
3
expressed in the text or body of the decision.
The trial court made definite findings on the complaint
for judicial separation of conjugal property, holding that
the petitioner and the private respondent were legally
married and that the properties mentioned by the
petitioner were acquired by Jo during their marriage
although they were registered in the name of an apparent
dummy.
There is no question therefore that the penultimate
paragraph of the decision of the trial court was a ruling
based upon such findings and so should have been
embodied in the dispositive portion. The respondent court
should have made the necessary modification instead of
dismissing Civil Case No. 51 and thus upholding mere form
over substance.
In the interest of substantive justice, and to expedite
these proceedings, we hereby make such modification. And
now to the merits of Civil Case No. 51.
The Court of Appeals dismissed the complaint on the
ground that the separation of the parties was due to their
agreement and not because of abandonment. The
respondent court relied mainly on the testimony of the
petitioner, who declared under oath that she left
Dumaguete City, where she and Jo were living together
because that was our agreement. It held that an
agreement to live separately without just cause was void
under Article 221 of the Civil Code and could not sustain
any
_______________
2

Republic Surety and Insurance Co., Inc., vs. Intermediate Appellate

Court, 152 SCRA 316 Alvendia vs. Intermediate Appellate Court, 181
SCRA 252.
3

Sentinel Insurance Co., Inc. vs. Court of Appeals, 182 SCRA 516.
698

698

SUPREME COURT REPORTS ANNOTATED

PartosaJo vs. Court of Appeals

claim of abandonment by the aggrieved spouse. Its

conclusion was that the only remedy available to the
petitioner was
legal separation under Article 175 of the
4
Civil Code, by virtue of which the conjugal partnership of
property would be terminated.
The petitioner contends that the respondent court has
misinterpreted Articles 175, 178 and 191 of the Civil Code.
She submits that the agreement between her and the
private respondent was for her to temporarily live with her
parents during the initial period of her pregnancy and for
him to visit and support her. They never agreed to separate
permanently. And even if they did, this arrangement was
repudiated and ended in 1942, when she returned to him at
Dumaguete City and he refused to accept her.
The petitioner invokes Article 178 (3) of the Civil Code,
which reads:
Art. 178. The separation in fact between husband and wife
without judicial approval, shall not affect the conjugal
partnership, except that:
xxx
(3) If the husband has abandoned the wife without just cause
for at least one year, she may petition the court for a receivership,
or administration by her of the conjugal partnership property or
separation of property.

The abovequoted provision has been superseded by Article

128 of the Family Code, which states:
Art. 128. If a spouse without just cause abandons the other or
fails to comply with his or her obligations to the family, the
aggrieved spouse may petition the court for receivership, for
judicial separation of property, or for authority to be the sole
administrator of the conjugal partnership properly, subject to
such precautionary conditions as
_______________
4

Art. 175. The conjugal partnership of gains terminates:

(1) Upon the death of either spouse
(2) When there is a decree of legal separation
(3) When the marriage is annulled
(4) In case of judicial separation of property under Article 191.
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PartosaJo vs. Court of Appeals

the court may impose.
The obligations to the family mentioned in the preceding
paragraph refer to marital, parental or property relations.
A spouse is deemed to have abandoned the other when he or
she has left the conjugal dwelling without any intention of
returning. The spouse who has left the conjugal dwelling for a
period of three months or has failed within the same period to
give any information as to his or her whereabouts shall be prima
facie presumed to have no intention of returning to the conjugal
dwelling.

Under this provision, the aggrieved spouse may petition for

judicial separation on either of these grounds:
1. Abandonment by a spouse of the other without just
cause and
2. Failure of one spouse to comply with his or her
obligations to the family without just cause, even if
said spouse does not leave the other spouse.
Abandonment implies a departure by one spouse with the
avowed intent never to return, followed by prolonged
absence without just cause, and without in the meantime
providing
in the least for ones family although able to do
5
so. There must be absolute cessation of marital relations,
duties and6 rights, with the intention of perpetual
separation. This idea is clearly expressed in the above
quoted provision, which states that a spouse is deemed to
have abandoned the other when he or she has left the
conjugal dwelling without any intention of returning.
The record shows that as early as 1942, the private
respondent had already rejected the petitioner, whom he
denied admission to their conjugal home in Dumaguete
City when she returned from Zamboanguita.The fact that
she was not accepted by Jo demonstrates all too clearly
that he had no intention of resuming their conjugal
relationship. Moreover, beginning 1968 until the final
determination by this Court of the action for support in
1988, the private respondent refused to
_______________
5

Tolentino, Commentaries and Jurisprudence on the Civil Code of the

Philippines, 1990 ed., Vol. 1, p. 398.

6

De la Cruz vs. De la Cruz, 22 SCRA 333.

700

700

SUPREME COURT REPORTS ANNOTATED

PartosaJo vs. Court of Appeals

give financial support to the petitioner. The physical

separation of the parties, coupled with the refusal by the
private respondent to give support to the petitioner,
sufficed to constitute abandonment as a ground for the
judicial separation of their conjugal property.
In addition, the petitioner may also invoke the second
ground allowed by Article 128, for the fact is that he has
failed without just cause to comply with his obligations to
the family as husband or parent. Apart from refusing to
admit his lawful wife to their conjugal home in Dumaguete
City, Jo has freely admitted to cohabiting with other
women and siring many children by them. It was his
refusal to provide for the petitioner and their daughter that
prompted her to file the actions against him for support
and later for separation of the conjugal property, in which
actions, significantly, he even denied being married to her.
The private respondent has not established any just cause
for his refusal to comply with his obligations to his wife as
a dutiful husband.
Their separation thus falls also squarely under Article
135 of the Family Code, providing as follows:
Art. 135. Any of the following shall be considered sufficient cause
for judicial separation of property:
xxx
(6) That at the time of the petition, the spouses have been
separated in fact for at least one year and reconciliation is highly
improbable.

The amendments introduced in the Family Code are

applicable to the case before us although they became
effective only on August
3, 1988. As we held in Ramirez vs.
7
Court of Appeals:
The greater weight of authority is inclined to the view that an
appellate court, in reviewing a judgment on appeal, will dispose of
a question according to the law prevailing at the time of such
disposition, and not according to the law prevailing at the time of
rendition of the appealed judgment. The court will therefore
reverse a judgment which was correct at the time it was originally
rendered where, by
_______________

72 SCRA 231.
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701

PartosaJo vs. Court of Appeals

statute, there has been an intermediate change in the law which
renders such judgment erroneous at the time the case was finally
disposed of on appeal.

The order of judicial separation of the properties in

question is based on the finding of both the trial and
respondent courts that the private respondent is indeed
their real owner. It is these properties that should now be
divided between him and the petitioner, on the assumption
that they were acquired during coverture and so belong to
the spouses half and half. As the private respondent is a
Chinese Citizen, the division must include such properties
properly belonging to the conjugal partnership as may have
been registered in the name of other persons in violation of
the AntiDummy Law.
The past has caught up with the private respondent.
After his extramarital flings and a succession of
illegitimate children, he must now make an accounting to
his lawful wife of the properties he denied her despite his
promise to her of his eternal love and care.
WHEREFORE, the petition is GRANTED and the
assailed decision of the respondent court is MODIFIED.
Civil Case No. 51 is hereby decided in favor of the plaintiff,
the petitioner herein, and the conjugal property of the
petitioner and the private respondent is hereby ordered
divided between them, share and share alike. This division
shall be implemented by the trial court after determination
of all the properties pertaining to the said conjugal
partnership, including those that may have been illegally
registered in the name of other persons.
SO ORDERED.
Padilla, GrioAquino and Bellosillo, JJ., concur.
Petition granted decision modified.
Note.Legal presumption that all property of the
marriage belongs to the conjugal partnership absent any
proof that it is the exclusive property of either spouse
(Toda, Jr. vs. Court of Appeals, 183 SCRA 714).
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